Mowbray v. Cady , 40 Iowa 604 ( 1875 )

Day, J.

Section 1922-of the Code of 1873 is as follows: “ No sale, contract or lease, wherein the transfer of title or ownership of personal property is made to depend upon any condition, shall be valid against any creditor or purchaser of the vendee or lessee in actual possession obtained in pursuance thereof, without notice, unless the same be in writing, executed by the vendor or lessor, acknowledged and recorded as chattel mortgages.”

The pivotal question is, do the facts of this case bring the transaction within the provisions of this section. If they do, contract : conditional sale. then, as the paper evidencing; the contract was not . , . ^ , , ,. . acknowledged nor recorded, the condition, as to a creditor or purchaser of the vendee without notice, is void, and as to such person, the sale is absolute. Although the section ^provides that no sale, contract or lease shall, under the circumstances named, be valid, yet it is apparent from the section taken together that the contract referred to is one creating the relation of vendee or lessee, for the only persons named against wdiom it is declared the contract shall not be valid are creditors or purchasers of the vendee or lessee without notice.

Now the contract is that Legg is to take and carry the watch for thirty days on trial, at the end of which time it is to be returned,- if not found satisfactory. If found satisfactory, at the expiration of 30 days Legg is to pay $15.00 down, and afterward $5.00 a month, until the watch is paid for. It is apparent that the relation of vendor and vendee does not under the contract exist, until, after the lapse of thirty days, Legg either elects to keep the watch, or neglects to return it. The finding of facts shows that the watch was levied upon by the constable, as the property of Legg, before tbe thirty days expired. It was then merely in bis possession upon trial, with a view to making a purchase of it, if it should prove satisfactory. We are of opinion that, at the time of' the levy, there was no conditional sale, coming within the provisions of the section of the Code above named.

It follows that the watch was not subject to the debts of Legg, though for reasons different from those assigned in the court below.

Aebtemed.